Ramilabai Merabai Bhil vs Narendrasingh Padamsingh Nayak
2021 Latest Caselaw 4601 Guj

         C/FA/2181/2010                                           JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.               2181 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                    RAMILABAI MERABAI BHIL
                             Versus
          NARENDRASINGH PADAMSINGH NAYAK & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                              Date : 23/03/2021

                                ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 30.07.2009 passed by the Motor Accident claims Tribunal (Aux), Vadodara in MACP No. 1159 of 1996, the original

C/FA/2181/2010 JUDGMENT

claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 It is the case of the original claimant that while she was going towards her house from her work place at about 6.00 PM on 06.06.1995, a tractor with trolley bearing registration no. MP­11­9977 coming from moti vavdi village side and dashed with the appellant. The FIR was lodged with Kalyanpura Police Station being I­CR No.94/95 for the offence punishable under sections 279, 337 of the IPC. The record indicates that because of the accident, the appellant received serious injuries and both the legs were fractured. The record further indicates that after some preliminary treatment, the appellant was required to be shifted to SSG Hospital, Vadodara for further treatment. The record also indicates that the appellant had to undergo surgery at SSG Hospital, Vadodara. It is the case of the appellant that because of the injuries sustained, she could not carry on work as a labourer. It is further the case of the claimant that she has sustained 26.5% permanent disability of the body as a whole, the extent of which was agreed by the parties before the Tribunal by passing purshis.

C/FA/2181/2010 JUDGMENT

2.2 It was the case of the appellant that she was earning Rs. 100/­ per month. The Tribunal after appreciating the evidence on record, came to the conclusion that there is no evidence on record to show that the appellant was working as a laborer and was earning Rs. 100/­ per day and the Tribunal determined the income of the deceased at Rs. 1200/­ and also gave benefit of prospective income to the extent of 50% and considering 26.5% permanent disability of the body as a whole, awarded Rs.14,400/­ as actual loss of income, Rs.68,688/­ as future loss of income, Rs. 10,000/­ towards medical expenses and transportation, Rs. 7,500/­ under the head of pain, shock and suffering and Rs. 5,000/­ under the head of food diet, attendants. Thus, the Tribunal awarded a sum of Rs. 1,05,588/­ with 7.5% interest from the date of filing of the claim petition till its realisation. Being aggrieved by the same, the original claimant has preferred this appeal.

3. Heard Mr. Hiren Modi, learned advocate for the appellant and Ms. Karna Rahevar, learned advocate for respondent no.3. Though served, no one appears for respondents no.1 and 2.

4. I have also perused the original record and proceedings.

5. Mr.        Hiren        Modi,         learned       advocate           for       the






  C/FA/2181/2010                                                  JUDGMENT

appellant has raised the following contentions ­

1) That the Tribunal has committed an error in considering considering the income of the appellant at Rs. 1200/­ per month. According to Mr. Modi, the appellant was working as a labourer and was doing masonry work and was also a household lady. According to Mr. Modi, the Tribunal ought to have determined the income of the deceased at Rs.3,000/­ per month.

2) Mr. Modi further contended that the Tribunal has also committed an error in awarding a meagre amount of Rs.10,000/­ towards medical expenses and transportation and Rs.7,500/­ as compensation under the head of pain, shock and suffering. Mr. Modi, learned advocate for the appellant submitted that the Tribunal has misread the evidence. Mr. Modi further submitted that the evidence show that the appellant had to undergo extensive treatment firstly at the local hospital and then was required to be shifted to SSG Hospital, Vadodara where she had to undergo surgery. Mr. Modi therefore contended that the amount deserves to be enhanced under goth these heads.

On the aforesaid grounds, Mr. Modi contended that the appeal be allowed by modifying the award.

C/FA/2181/2010 JUDGMENT

6. Per contra Ms. Rahevar has opposed the appeal and has contended that the Tribunal has rightly appreciated the evidence on record and according to Ms. Rahevar, no interference is called for. Ms. Rahevar contended that the appellant has not adduced any evidence as regards her income and considering the date of the accident, the Tribunal has correctly determined the income of the deceased and no alteration or modification is required. Ms. Rahevar also submitted that in facts of this case and after appreciating the evidence on record, the Tribunal has rightly awarded the compensation under each head and no modification is required to be done in the instant award and the appeal being meritless, deserves to be dismissed.

7. No other or further submissions have been made by the learned advocates appearing for the parties.

8. Upon considering the contentions raised by Mr. Modi as regards income, it deserves to be noted that the appellant has not adduced any evidence about her income. Upon re­appreciation of the evidence as a whole, the appellant has also not been able to remotely prove that she was working as labour. Except the assertion in the claim petition, no other evidence is found on the record. It is a matter of fact that the accident has occurred on 06.06.1995. In absence of any evidence, as regards income, one of the

C/FA/2181/2010 JUDGMENT

yardstick which is available to determine the income in a claim petition is to follow the minimum wage standard as applicable on the date of the accident. The chart which his submitted by the learned advocate for the parties indicate that on the date of the accident, i.e., 06.06.1995, the minimum wage of the skilled­A worker in Gujarat is Rs.1,100/­ per month whereas the tribunal has determined the income at Rs. 1,200/­ per month, which in fact is more than the minimum wage standard. In addition to that, the Tribunal has also been pleased to give benefit of the prospective income by applying correct multiplier of 15. Upon re­appreciation of such evidence on record, the contention raised by Mr. Modi that the income of the appellant should be considered at Rs.3,000/­ is found not only without any basis, but the same deserves to be negatived.

9. The documentary evidence on record shows that the appellant was required to be admitted as indoor patient twice at SSG Hospital, Vadodara and had to undergo surgery. Upon re­ appreciation of the evidence on record, the contention raised by Mr. Modi that a meagre amount of compensation is awarded under the head of medical expenses and transportation and pain, shock and suffering deserves consideration. Upon re­appreciation of the evidence on record, this Court is of the opinion that the appellant would be entitled to a sum of Rs.15,000/­ towards

C/FA/2181/2010 JUDGMENT

medical expenses and transportation instead of Rs. 10,000/­. Similarly, considering the extensive treatment taken by the appellant and also considering the fact that the appellant had to undergo surgery and was required to be admitted as indoor patient twice at SSG Hospital, Vadodara, upon re­appreciation of the evidence on record, this Court is of the opinion that the appellant would be entitled to a sum of Rs. 25,000/­ as compensation under the head of pain, shock and suffering instead of Rs. 7,500/­. Similarly, the compensation under the head of food diet, attendant deserves to be enhanced to Rs.10,000/­ instead of Rs. 5,000/­.

10. Upon further re­appreciation of the evidence on record and also considering the fact that 26.5% total permanent disability that too in leg, the appellant would be deprived of loss of amenities of life and considering the age of the appellant on the date of the accident, in opinion of this Court, the same can be quantified at Rs.10,000/­. Having come to the aforesaid conclusion, the appellant would be entitled to compensation as under ­

Rs.14,400/­ ­ Actual Loss of Income Rs.68,688/­ ­ Future Loss of Income Rs.15,000/­ ­ Transportation and Medical expenses Rs.25,000/­ ­ Pain, shock and suffering Rs.10,000/­ ­ Special Diet, food, etc. Rs.10,000/­ ­ Loss of amenities

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11. Thus, the appellant would be entitled to total compensation of Rs.1,43,088/­. As the Tribunal has granted an amount of Rs. 1,05,588/­, the appellant would be entitled to further amount of Rs. 37,500/­ with 7.5% interest from the date of filing of the claim petition till its realisation. The insurance company shall deposit the additional amount with interest as awarded by this Court within a period of eight weeks from the date of receipt of this judgment and order. The impugned judgement and award stands modified to the aforesaid extent. The appeal is partly allowed. However, there shall be no order as to costs. Record and proceedings be transmitted back to the Tribunal forthwith.

(R.M.CHHAYA, J) BIJOY B. PILLAI